As I have previously noted, government attorneys’ traditional approach to litigating Superfund cases has been to announce that they represent the government and that they therefore win. There was hope, following the Supreme Court’s decision in Burlington Northern, that those days were nearing an end.

It is clear to me, following too many cases after Burlington Northern, that the government remains of the view that it is entitled to win these cases just by showing up. This hubris was evident recently in a decision rendered under the New Jersey Spill Act. In NJDEP v. Dimant, the state sought to impose liability on a dry cleaner for groundwater contamination, where NJDEP obtained evidence in 1990 that a pipe outside a dry cleaner was leaking PCE. However, the defendant only operated the dry cleaner for a brief period and NJDEP never took any steps to determine what was actually happening to the drip from the pipe. It had no proof that the asphalt beneath the pipe was cracked and no proof that the discharged material in fact migrated into the groundwater.

For the Court, where NJDEP was looking to recover response costs for addressing contaminated groundwater, this was not enough.

The determinative question is not whether there was a discharge at [the dry cleaner’s] but whether the DEP has connected the discharge that did occur to the relief it has sought against [the dry cleaner]…. A party must be shown to have committed a discharge that was connected to the specifically charged environmental damage … in some real, not hypothetical, way.

Because the trial court reasonably found that NJDEP “never made the requisite connection showing how the dripping PCE … reasonably could have made its way into the groundwater,” judgment for the defendant was affirmed.

Evidence that merely “presents probabilities rather than proof,” “relies upon a collection of facts that could be summarized as ’if it is there, it must be theirs,’” or is “vague and imprecise, of questionable reliability, and therefore not sufficiently probative to create an issue for trial” is insufficient to hold a party liable under CERCLA.

There’s a reason I referred to the all-too-common government approach to these cases as hubris. Fortunately, a general sense that the government is entitled to win, because the gods are on its side, is not enough – at least some of the time – to prevail in these cases.